United States District Court, D. Connecticut
ORDER GRANTING MOTION TO DISMISS
Jeffrey Alker Meyer United States District Judge
is a police officer who has sued his police department and a
police supervisor on the ground that they retaliated against
him for filing a workplace grievance. According to plaintiff,
his grievance was an exercise of free speech subject to
protection under the federal and state constitutions. I will
dismiss the complaint on the ground that plaintiff's
grievance was not subject to protection from retaliation
under the First Amendment.
following facts as drawn from the complaint are accepted as
true for purposes of this motion. Plaintiff is a lieutenant
with the City of Shelton Police Department. Defendants are
the City of Shelton and interim police chief Shawn Sequeira.
In November 2015, plaintiff was demoted from the rank of
lieutenant to the rank of sergeant. Sequeira assumed a
leading role in the effort to demote plaintiff. After his
demotion, plaintiff filed a grievance. The matter proceeded
to a full evidentiary hearing before the Connecticut
Department of Labor, Board of Mediation and Arbitration, and
the arbitrators eventually ruled in plaintiff's favor.
to the complaint, plaintiff's filing and pursuit of this
workplace grievance constituted an exercise of his rights to
free speech under the federal and state constitutions. After
the arbitrators ruled in plaintiff's favor, defendants
allegedly took various adverse actions against plaintiff. For
example, plaintiff was forced to answer questions about a
certain incident as if he were the target of an internal
investigation even though he had no connection to the
incident. Additionally, Sequeira stated numerous times that
he was trying to get plaintiff fired. Plaintiff was also
deprived of the privilege of bringing a duty vehicle home-a
privilege normally afforded police lieutenants.
filed this federal court action alleging that he was subject
to unlawful retaliation for engaging in speech protected
under the First Amendment. Plaintiff further claims that he
was subject to retaliation for engaging in speech protected
under the Connecticut Constitution. Defendants have now moved
to dismiss the complaint.
background principles governing a Rule 12(b)(6) motion to
dismiss are well established. The Court must accept as true
all factual matters alleged in a complaint, although a
complaint may not survive unless the facts it recites are
enough to state plausible grounds for relief. See,
e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Mastafa v. Chevron Corp., 770 F.3d 170, 177
(2d Cir. 2014).
order to maintain a valid claim for First Amendment
retaliation, a plaintiff must allege facts showing that
“(1) his speech or conduct was protected by the First
Amendment; (2) the [governmental] defendant took an adverse
action against him; and (3) there was a causal connection
between this adverse action and the protected speech.”
Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d
267, 272 (2d Cir. 2011). For obvious reasons, government
employers have an interest in regulating and restricting the
speech of their own employees in ways that would not be
acceptable if the government were regulating the speech of
the citizenry in general. See Ricciuti v.
Gyzenis, 834 F.3d 162, 167-68 (2d Cir. 2016); Lynch
v. Ackley, 811 F.3d 569, 577 (2d Cir. 2016).
when a plaintiff is a public employee who claims that his
governmental employer has engaged in First Amendment
retaliation, a court must consider at the outset whether the
plaintiff's speech activity is subject at all to
protection from adverse action. The Supreme Court has made
clear that a public employee's speech is not subject to
protection unless the speech addresses a matter of public
concern and unless the employee spoke in his capacity as a
citizen rather than an employee. See Garcetti v.
Ceballos, 547 U.S. 410, 420-22 (2006); Jackler v.
Byrne, 658 F.3d 225, 235 (2d Cir. 2011). This
determination of whether speech involves a matter of public
concern and is made as a citizen rather than an employee is a
question of law for a court to decide in light of the
content, form, and context of any given statement.
Id. at 237; Ruotolo v. City of New York,
514 F.3d 184, 189 (2d Cir. 2008) (same).
argues that plaintiff's grievance was not employee speech
subject to protection under the First Amendment. I agree, and
apparently so does plaintiff, because plaintiff makes no
attempt at all in his briefing to respond to any of
defendants' arguments about the First Amendment. Instead,
plaintiff's briefing addresses solely his state law
rights under the Connecticut Constitution. Plaintiff has
abandoned his First Amendment claim by failing to address any
of the First Amendment arguments raised in defendants'
motion to dismiss.
is good reason for plaintiff to give up on his First
Amendment claim, because the Second Circuit has made clear
that an employee's filing and pursuit of a workplace
grievance is not speech made as a “citizen” as
distinct from workplace speech made as an
“employee.” See Weintraub v. Bd. of Educ. of
City Sch. Dist. of City of New York, 593 F.3d 196,
203-04 (2d Cir. 2010). A formal grievance process “is
not a form or channel of discourse available to non- employee
citizens.” Id. at 204. Rather, it is an
internal process for resolving employment disputes pursuant
to an employment agreement. Ibid.
it be said that plaintiff's grievance was on a matter of
public concern. His grievance alleged that defendants
improperly disciplined him for violations of certain rules
and without according him his rights to due process in
connection with the discipline imposed. See
generally Doc. #21-1. Although plaintiff tries to frame
his grievance as addressing loftier matters of police
misconduct, a fair reading of the record shows that that the
grievance was addressed principally to plaintiff's
concern that he himself was not fairly treated when demoted.
This type of alleged mistreatment of an employee by an
employer falls well short of constituting a matter of public
concern. See, e.g., Miller v. New York City
Dep't of Educ., 622 F. App'x 38, 39 (2d Cir.
2015); Ruotolo, 514 F.3d at 190.
plaintiff has abandoned his First Amendment claim and because
his First Amendment claim plainly lacks merit, I will dismiss
this claim. I will otherwise decline to exercise supplemental
jurisdiction over plaintiff's remaining state law claim.
See, e.g., P ...